Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms” the common law rule of “citizenship by birth within the territory,” even if one is born of alien parents in this country, and approved of the characterization of the children of such resident aliens as “natural born” citizens of the United States.[1] The Fourteenth Amendment further requires that the person born “in” the United States also be “subject to the jurisdiction” of the United States which, as noted, is interpreted to mean that such person is subject to the laws of this country, such that jurisdiction may be exercised over them, and thus would exclude children of foreign diplomats here officially, and those of foreign troops in hostile occupation.[2]
Being born within the geographic boundaries of the United States, however, unlike the meaning under British common law, does not necessarily include being born in the unincorporated “territories,” possessions, or protectorates of the United States, unless such citizenship “at birth” is otherwise provided by statute.[3] A U.S. Court of Appeals, relying on the “Insular cases,” found that birth in an unincorporated territory or possession of the United States, such as the Philippines, did not grant Fourteenth Amendment or common law citizenship as being born “in” the geographic area of the “United States,” even though under the British common law one may have been a natural born “subject” of the crown when born within the far-flung dominions ruled by the British Empire.[4]
Common Law and Persons Born Abroad to Citizen-Parents
In United States v. Wong Kim Ark, the Supreme Court, in examining an immigration question not dealing specifically with the meaning of the presidential eligibility requirement, provided a lengthy examination of the English common law of citizenship at the time of the drafting of the Constitution, and whether such citizenship was obtained by the place of birth (jus soli) only, or also by descent (jus sanguinis). As noted above, the Court found that the common law of England was that of jus soli, that is, derived from the feudal notion of the reciprocal responsibilities of allegiance and protection of an individual that was established in England by the place of that person’s birth; and that the latter principle of citizenship by descent (because of the citizenship or nationality of one’s father—jus sanguinis) was, as a general matter, the law in England by statute, and thus not necessarily as part of the “common law,” even though there existed a long-standing
- ↑ 169 U.S. at 693.
- ↑ In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884); United States v. Wong Kim Ark, 169 U.S. at 687, 693. See discussion in more recent case of Plyer v. Doe, 457 U.S. 202, 211–215 (1981), finding that for due process, as well as equal protection purposes in the Fourteenth Amendment, that one “within the jurisdiction” of a state is one “subject to its laws:” “In appellants’ view, persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction’” (457 U.S. at 211). Rather, the Court found that “the protections of the Fourteenth Amendment extends to anyone… who is subject to the laws of a State….” (457 U.S. 215).
- ↑ See, for example, 8 U.S.C. §1402 (Puerto Rico, born on or after April 11, 1899), §1403 (Canal Zone or Republic of Panama, born on or after February 26, 1904), §1404 (Alaska, born on or after March 30, 1867), §1405 (Hawaii, born on or after April 30, 1900).
- ↑ Rabang v. INS, 35 F.3d 1449, 1453 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995): “[T]he Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty.” See also, id. at 1454, n.9, where the Court of Appeals opined that “wholesale importation of British common law on ‘subject’ status to interpret the meaning of the Citizenship Clause [of the Fourteenth Amendment] is inadvisable because of possible differences between ‘subjects’ and ‘citizens,’” and thus those born in U.S. unincorporated territories or possessions should not necessarily be considered as being born “in” the United States.
